Spencer v Burton

Case [2015] QCA 104

SUPREME COURT OF QUEENSLAND

CITATION:

Spencer v Burton [2015] QCA 104

PARTIES:

KENT RICHARD SPENCER
(aka KENNETH RICHARD SPENCER)
(appellant)
v
DAPHNE BURTON
(respondent)

FILE NO/S:

Appeal No 6469 of 2014
SC No 506 of 2012
SC No 820 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:


Supreme Court at Townsville – Unreported, 23 June 2014

DELIVERED ON:

16 June 2015

DELIVERED AT:

Brisbane

HEARING DATE:

18 March 2015

JUDGES:

Holmes and Gotterson JJA and Ann Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.    The appeal should be allowed.

2.    The judgment and declarations made on 23 June 2014 should be set aside.

3.    The matter should be remitted to the trial division for determination by a different judge.

4.    The application for leave to adduce further evidence and notice of contention should be refused.

5.    The parties have leave to file any submissions on costs within 14 days of the date of delivery of the judgment.

CATCHWORDS:

SUCCESSION – PROBATE AND LETTERS OF ADMINISTRATION – GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION – GRANTS OF ADMINISTRATION GENERALLY – TO WHOM GRANTED AND WHEN NECESSARY GENERALLY – QUEENSLAND – where the deceased died of cancer in July 2012 – where Kent Richard Spencer obtained Letters of Administration on Intestacy of her estate on the basis that the he was her de facto partner – where the deceased’s mother brought an application seeking a declaration that Spencer was not a spouse or de facto partner of the deceased, the Letters of Administration of Intestacy granted to him be revoked and that a replacement grant of Letters of Administration of Intestacy be granted to her – where the primary judge was not satisfied that Spencer had proven on the balance of probabilities that he and the deceased had lived together as a couple on a genuine domestic basis for the required two year period prior to her death – where the primary judge made declarations and orders in terms of the application brought by the deceased’s mother – whether the primary judge erred in his reasons by acting unreasonably and against the weight of evidence in making findings of fact – whether the primary judge erred in his reasons by attributing little or reduced weight, misconstruing and failing to have regard to the evidence – where the reasons of the primary judge reveal an overemphasis on financial and property matters and a discounting of other indicia which were clearly present – whether the appeal should be allowed

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – FURTHER EVIDENCE – where the respondent seeks leave to adduce new evidence on the basis that the evidence supports the findings of the primary judge – where the evidence refers to the appellant’s dealing with the estate funds prior to the trial and after those orders were made restraining him from dealing with estate property…

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Spencer v Burton [2015] QCA 104
Case
[2015] QCA 104
Decision Date

CaseChat Overview and Summary

In Spencer v Burton, the Court of Appeal addressed a dispute regarding the succession rights to the estate of a deceased person. Kent Richard Spencer had obtained Letters of Administration on Intestacy of the deceased's estate, asserting that he was her de facto partner. The deceased's mother contested this claim, arguing that Spencer was neither a spouse nor a de facto partner and sought a revocation of the Letters of Administration granted to Spencer and a new grant to herself. The primary judge ruled in favour of the deceased's mother, concluding that Spencer had not proven, on the balance of probabilities, that he and the deceased had lived together as a couple on a genuine domestic basis for the required two years prior to her death.

The Court of Appeal examined whether the primary judge's decision was flawed in several respects. The court scrutinised whether the primary judge had erred in his reasoning, particularly by attributing little weight to certain evidence and overemphasising financial and property matters. The appeal also considered whether the primary judge's findings were unreasonable or against the weight of the evidence. The court found that the primary judge's approach was flawed and that he had not adequately considered all relevant evidence, leading to an unreasonable conclusion. Consequently, the appeal was allowed, and the original judgment and declarations were set aside. The matter was remitted to the trial division for reconsideration by a different judge.

The court also addressed the respondent's application to adduce further evidence, which sought to introduce new evidence regarding the appellant's handling of estate funds. The court found that the application did not demonstrate reasonable diligence and that the evidence could have been obtained prior to trial. Therefore, the application for leave to adduce further evidence was refused. The final orders included setting aside the original judgment, remitting the matter for a new trial, and refusing the application for new evidence, with both parties allowed to submit on costs within 14 days of the judgment.

Orders

Orders of the court

1. The appeal should be allowed.

2. The judgment and declarations made on 23 June 2014 should be set aside.

3. The matter should be remitted to the trial division for determination by a different judge.

4. The application for leave to adduce further evidence and notice of contention should be refused.

5. The parties have leave to file any submissions on costs within 14 days of the date of delivery of the judgment.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The appellant seeks orders that the judgment given on 23 June 2014 be set aside and that the respondent’s application for declaratory relief and orders at first instance be dismissed. Alternatively, the appellant seeks orders that the respondent’s application for declarations and orders be remitted to the Trial Division to be heard according to law by another judge.Application to Adduce Further Evidence and Notice of Contention On 12 March 2015, the respondent filed an application to adduce further evidence and a notice of contention. The application to adduce further evidence is brought pursuant to r 766(1)(c) and r 766(2) of the Uniform Civil Procedure Rules 1999 (Qld) and relates to the evidence of the appellant’s conduct relevant to the issues in the notice of contention and the further evidence obtained subsequent to the trial pursuant to the Letters of Administration on Intestacy granted to the respondent. The grounds of contention are that:1.The conduct of the appellant in failing to account for or disclose the existence of estate funds held in his bank accounts, in breach of an order of the Supreme Court dated 31 January 2013, constitutes an admission that he had no faith in the merits of his own case.2.The conduct, admitted by the appellant, that he had, in breach of the order of 31 January 2013, applied estate funds to his own benefit and failed to truthfully account for the funds he had held was a further basis upon which the learned primary judge could and should have found the appellant to be a witness lacking in credit.3.The swearing of affidavits on 14 February 2013 and 7 June 2013, which were false with respect to his dealings with the estate funds, was a further basis upon which the primary judge could and should have found the appellant to be a witness lacking in credit. The issues raised in the notice of contention and the application to adduce further evidence will be dealt with after a determination of the appellant’s grounds of appeal.The issue before the trial judge The issue before the trial judge, therefore, was whether the appellant was the spouse of the deceased on her death pursuant to s 5AA of the Succession Act. The relevant provisions of which are as follows;“5AA Who is a person’s spouse(1)Generally, a person’s spouse is the person’s—(a)husband or wife; or(b)de facto partner, as defined in the Acts Interpretation Act1954 (the AIA), section 32DA; or(c)registered partner, as defined in the AIA, schedule 1.(2)However, a person is a spouse of a deceased person only if, on the deceased’s death—(a)the person was the deceased’s husband or wife; or(b)the following applied to the person—(i) the person was the deceased’s de facto partner, as defined in the AIA, section 32DA;(ii) the person and the deceased had lived together as a couple on a genuine domestic basis within the meaning of the AIA, section 32DA for a continuous period of at least 2 years ending on the deceased’s death; or(ba)the person was the deceased’s registered partner; or(c)for part 4, the person was—(i) a person mentioned in paragraph (a), (b) or (ba); or(ii) the deceased’s dependant former husband or wife or registered partner.(3)Subsection (2) applies—(a)despite the AIA, section 32DA(6) and schedule 1, definition spouse; and(b)whether the deceased died testate or intestate.”

Decision

Reasons for decision

Therefore, despite the fact that the current respondent was the applicant in those proceedings, the onus at trial was on the current appellant to establish that he and the deceased were ‘de facto partners’ for at least two years, ending on her death. The relevant two year period was the period between 6 July 2010 and 6 July 2012.The decision at first instance At trial, there was no dispute between the parties that there had been an ongoing relationship between the deceased and the appellant which had commenced in 1999. At trial, Counsel for the respondent argued, however, that despite the ongoing nature of the relationship, it had diminished from 2003 or 2004 onwards and that there were a number of events that had contributed to the further lessening of the relationship between 2007 and 2009. Counsel for the respondent also acknowledged at trial that following the deceased’s diagnosis of breast cancer in November 2010, the appellant was involved in her life to a greater extent, particularly following the indication that the cancer was terminal in November 2011. Counsel for the respondent, however, argued that the deceased and the appellant had not lived together as a couple on a genuine domestic basis for the requisite two years prior to her death.Key findings on the s 32DA criteria The primary judge worked through a consideration of a number of factors in ascertaining whether the appellant and the deceased were living together as a couple on a genuine domestic basis for the requisite period of two years which ended at her death in July 2012. Those factors included some of the indicia listed in s 32DA of the Acts Interpretation Act. It is clear that any of the couple’s circumstances can be taken into account in determining the question as to whether they were living together as a couple on a genuine domestic basis and that none of the indicia listed in s 32DA are considered to be a necessary prerequisite to any finding. In his Honour’s reasons, it is clear that the primary judge accepted that the appellant was very fond of the deceased and loved her and that they were a close and intimate couple for much of the 13 years of their relationship.[2] He also accepted that despite his infidelity in 2009, the appellant and the deceased reconciled and continued to present as a couple on social occasions.[3] As his Honour correctly identified, the question was not whether they presented as a couple, but whether they were living together as a couple in a genuine domestic basis for the period of two years ending on 6 July 2012.[4][2]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [37] and [40].[3]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [37].[4]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, [37]. The primary judge considered that the main issues in contention in terms of the criteria in s 32DA(2) of the Acts Interpretation Act were:1.The nature and extent of the common residence;2.The degree of financial dependence or interdependence and arrangements for financial support;3.Their ownership and acquisition of property; and4.The reputation and public aspects of the relationship.[5][5]Burton v Spencer, unreported, North J, SC No 820 of 2012, 23 June 2014, 20-22.

Ratio Decidendi

Legal Principle Established

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